Monday, June 27, 2005

Now that the Supreme Court has completed its 2004-05 term, I'm left wondering which opinion I dislike the most. It's hard to choose between Kelo v. City of New London, which effectively read "public" out of the Fifth Amendment's "public use" requirement, and Gonzales v. Raich, which effectively allowed Congress to regulate intrastate commerce. (What about the MGM v. Grokster opinion, released earlier today? Eh. It doesn't do much for me, one way or another.)

After some reflection, and a great deal of grousing, I come down in favor of hating Raich the most. The way I figure, we can correct the invidious effects of Kelo locally, by ensuring that the various state constitutional counterparts to the U.S. Constitution's Takings Clause provide the sort of protection that the Kelo Court just denied us. It'll make for a long, hard slog, but one well worth the effort.

Raich, on the other hand, admits no such cure. Because it gives the feds power to regulate every little nook and cranny of our lives, we cannot hide behind the shelter of states' laws. I'm not sure how to correct Raich as a legal matter. Politically, though, I am quite ready to protest it. Here, then, is my contribution to that worthy cause.

The Interstate Commerce Blues

To the tune of "House of the Rising Sun"

Time: 3/4. Key: Am. Tempo: Moderate.

There is a Court in Washington, Am C D F

They call, "U.S. Supreme." Am C E7

It has been the ruin of many a clear text, Am C D F

Thanks to its nine Justice team. Am E7 Am

The Constitution empowers Congress to Am C D F

Regulate interstate commerce. Am C E7

But the way the Court has read that clause, Am C D F

It means something exactly reverse. Am E7 Am

Grow wheat to use on your own farm, Am C D F

Grow weed for your own smoke, Am C E7

And the Court calls it "interstate commerce"; they've Am C D F

Made federalism a joke. Am E7 Am

There is a Court in Washington, Am C D F

They call, "U.S. Supreme." Am C E7

It has been the ruin of our states' rights, Am C D F

An injustice that we must redeem. Am E7 Am

Fin.

I sometimes like to play it, as befits a case inspired by Raich, with a Reggae flavor: down, up, and down with a mute. However you sing it, though, sing it loud and sing it proud!

[NB: For reasons discussed in the comments, I changed the key from C to Am. Also, I changed the lyrics and added chords well after the first posting. I thank Eugene Volokh for questioning whether the first version scanned (it didn't), Janet Mulligan for suggesting "redeem," and students of the IHS Pitzer Liberty and Society Seminar for patiently suffering through an early rendition. I also performed for those IHS students a French verse about EU's effect on regional governance, a copy of which you can find here.]

I think you're right, Jadagul, though it's an interesting case. Riffing with a friend about the song a few days ago, I told him it was in Am just because it felt like it. But when I started writing it down, I found that my written sources gave different descriptions of the song. I went with the one that showed the song in straight up C.

I google the question following your comment, though, and got this explanation of the song: "The one stand out chord is the D, I think because it doesn't really belong in the key of Am, which this is. Normally, you'd find a Dm in this key, but this one is major. It really lifts the tune." See http://www.guitarforbeginners.com/lessons/rising.shtml.

In short, the song doesn't quite fit the usual rules. But my gut--and most commentators--fit it into Am. I'll thus amend the post to do the same.

I agree that both decisions are terrible, and I'm not too concerned about which one to hate the most.

The scariest part is that Thomas seems to be the only Supreme Court Justice who insists on reading the constitution as meaningfully limiting state power at all (with respect to economic liberty, at least).

I don't want Stevens or Ginsburg to die or anything; but if they could have some strong reason to retire soon, and be replaced with people like Janice Rogers Brown, I'd be much happier.

The song is most definitely in the key of A minor. D major fits perfectly well in the A melodic minor scale, with its F# being the raised 6 to A minor, just as E7 shares a G# with A melodic minor.

E7 and D major are much less likely to be in a song in a traditional C major than one in Am, except perhaps as secondary dominants. House of the Rising Sun is a traditional A minor folk tune, with little in the way of surprises.